                 Revised Underground Storage Tank Regulations
                                  80 FR 41566
                                 July 15, 2015

Name of State:  		North Dakota									

State Statutory Authority: 		North Dakota Century Code, Volume 4A, 2017 Supplement, Chapter 23.1-04 "Hazardous Waste Management"					

Title of Regulations:  	North Dakota Administrative Code, Title 33.1, Chapter 24-08 			
Effective Date:  TBD											

Date Checklist Completed:  	November 9, 2018							

General Comments:  

North Dakota generally uses a verbatim approach in its UST regulations, although the state uses a different numbering system.  Where the state uses wording or an approach that is different than federal and stringency or scope may be affected, the details are noted within this checklist review.  Otherwise the state provisions have been found to be functionally equivalent to federal and no comment is made.
As of 12/3/2018, North Dakota has been provided this technical review to help shape their future updates with respect to typographical and internal reference errors.  

                                       
                             FEDERAL REQUIREMENTS
                             FEDERAL RCRA CITATION
                           ANALOGOUS STATE CITATION
                               STATE ANALOG IS:
                                                                               



                                  EQUIV-ALENT
                                     LESS
                                    STRIN-
                                     GENT
                                MORE STRIN-GENT
                               BROADER IN SCOPE
                                                                               
PART 280  -  TECHNICAL STANDARDS AND CORRECTIVE ACTION REQUIREMENTS FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS (UST)
                                                                               
Subpart A  -  Program Scope and Installation Requirements for Partially Excluded UST Systems
                                                                               
Applicability.
280.10(a) intro.
33.1-24-08-01.1 intro., first sentence
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  There is an internal reference error in the first sentence.  North Dakota refers to "except as otherwise provided in subsections 2, 3, and 4"; however, there is not a subsection 4 in this section.  The internal reference should be to "subsections 2 and 3" [i.e., 33.1-24-08-01.2 and 33.1-24-08-01.3] in order to correspond to the federal internal reference "paragraphs (b) and (c) of this section" (i.e., 280.10(b) and (c)).  
                                                                               
Applicability  -  Previously deferred UST systems.
280.10(a)(1) 
33.1-24-08-01.1.a 
                                       X
                                       
                                       
                                       
                                                                               
Applicability  -  UST systems listed in 280.10(c) must meet the 280.11 requirements.
280.10(a)(2) 
33.1-24-08-01.1. intro. second sentence 
                                       X
                                       
                                       
                                       
                                                                               
Applicability  -  Exclusions
280.10(b) intro. 
33.1-24-08-01.2 intro. 
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota has omitted the federal 280.10(b) title "Exclusions" from the beginning of 33.1-24-08-01(2) intro.  The state may wish to insert "Exclusions" before the introductory language.  Note that North Dakota has adopted the federal titles at 33.1-24-08-01.1.a intro. and 33.1-24-08-01.3 intro. (analogs to 280.10(a)(1) intro. and 280.10(c) intro., respectively). 
                                                                               
Applicability  -  Exclusions
280.10(b)(1)  -  (6)
33.1-24-08-01.2.a  -  .f
                                       X
                                       
                                       
                                       
                                                                               
Applicability  -  Partial Exclusions
280.10(c)
33.1-24-08-01.3 
                                       X
                                     (INC)
                                       
                                       
                                       
                                                                               
Review Comment:  At 33.1-24-08-01.3 intro. and 33.1-24-08-01.3.b(1) & (2) [analogs to 280.10(c) intro., (c)(2)(i)&(ii)], North Dakota is internally inconsistent in referencing its analog to 40 CFR part 280, subpart K.  At both 33.1-24-08-01.3.b(1) and (2) (analogs to 280.10(c)(2)(i) and (ii)), the state references "33.1-24-08-70 through 33.1-24-08-73" even though 33.1-24-08-73 is a reserved section, whereas at 33.1-24-08-01.3. intro. (analog to 280.10(c) intro.), the state references "33.1-24-08-70 through 33.1-24-08-72" as its analog to subpart K.  It is recommended that the state always use "33.1-24-08-70 through 33.1-24-08-72" to reference 40 CFR 280, Subpart K to prevent confusion.  
                                                                               
Installation requirements for partially excluded UST systems.
280.11
33.1-24-08-02
                                       X
                                       
                                       
                                       
                                                                               
Definitions
280.12, except listed definitions
33.1-24-08-03, except listed definitions 
                                       X
                                       
                                       
                                       
                                                                               
Definition  -  implementing agency
280.12 implementing agency
33.1-24-08-03.17 "Department"
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota does not include the definition "implementing agency".  At the definition of "department", the state identifies the Department of Environmental Quality as the entity charged with the administration and enforcement of its UST program.  The state's term is functionally equivalent to the federal term. 
                                                                               
Definition  -  pipe or piping
280.12 pipe or piping
33.1-24-08-03.43 "pipe" or "piping"
                                       X
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  The state definition of "pipe or piping" contains additional language that was added by the state in either 2009 or 2011 as to the purpose of pipes or piping and what is actually included in the definition in the same manner as similarly described in the definition for "connected piping".  The additional detail adds clarity and does not affect the stringency of the state's program.
                                                                               
Definition  -  repair
280.12 repair
33.1-24-08-03.51 "repair"
                                       X
                                   (MCL/TYP)
                                       
                                       
                                       
                                                                               
Review Comments:  
 There is a typographical error in the first line of this definition:  "tank pipe, spill prevention" should be corrected to insert a comma so the list reads "tank, pipe, spill prevention".  
 Additionally, the state includes language with respect to piping and dispenser repair that is not in the federal definition but adds clarity to the state program, limiting piping repair to up to ten feet of piping while piping replacement applies at ten feet or more.  North Dakota's clarification with respect to dispenser repairs appears to borrow language from the federal rule published at 80 FR 41566, specifically at p. 41575 that describes what EPA includes in a replacement of a dispenser not a repair.  These clarifying statements by North Dakota do not appear to affect the stringency of the state's regulations.  Also note that the third sentence "Piping repair involving installation of a single run of more than ten feet of new piping to replace existing piping constitutes replacement as defined in subsection 52" may be more clear if it were included in the definition of "replace or replacement" at subsection 52.   
                                                                               
Definition  -  replaced
280.12 replaced
33.1-24-08-03.52 "replace or replacement"
                                       
                                       X
                                     (INC)
                                       X
                                     (INC)
                                       
                                                                               
Review Comment:  The North Dakota definition of replaced with respect to piping at 33.1-24-08-03(52)(b) is at least inconsistent with federal and may be more stringent.  North Dakota defines piping as replaced when more than 10 feet of piping is removed and other piping is installed, while the federal definition uses 50% or more.  Thus, in cases where a facility is removing 10 feet of piping from a run that is 50 feet long, the state would define the piping as replaced but the federal definition would not.  The state definition would thus require the facility to comply with the replaced piping requirements where the federal would not.  It is also arguable for very short piping runs that the state is possibly less stringent.  For instance, where a piping run is 15 feet long and the facility removes 8 feet of piping, the federal definition of replaced is met but not the state definition of replaced; in North Dakota this is merely repaired.  

Note that the state's implementing statute indicates at NDCC 23.1-04-06 that the state may not make rules that are more stringent than applicable requirements of the federal RCRA and the Energy Policy Act of 2005.  As a result, the state may wish to revise this definition to be equivalent to federal.  

As of 12/3/2018, this comment has been resolved.  North Dakota's language provides clarity for the regulated community, which is a greater benefit that outweighs the very low probability of short piping runs.
                                                                               
Definition  -  under-dispenser containment (UDC)
280.12 under-dispenser containment or UDC
33.1-24-08-03.62 "under-dispenser containment (UDC)"
                                       X
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  At 33.1-24-08-03.62.a - .c,  North Dakota includes additional language in this definition to describe details with respect to under-dispenser containment.  The language at 33.1-24-08-03.62. a and .c appears in the federal program at 40 CFR 280.20(f)(2) and in the state analog at 33.1-24-08-10.4.b but not in the federal definition.  In addition, at 33.1-24-08-03.62.b, state includes language from 280.32(a) and found at 33.1-24-08-22.1, which specifies that the containment must be compatible with the substance conveyed by the piping.  Including the additional language here adds clarity to the definition but does not affect the stringency of the state's program.
                                                                               
Definition  -  underground storage tank
280.12 underground storage tank or UST
33.1-24-08-03.65 "underground storage tank"
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comments:  
 At 33.1-24-08-03.65.d(2), there is a typographical error:  in the second line the state should replace "Pipeline Safety Statue" with "Pipeline Safety Statute".
 The provision after 33.1-24-08-03.65.h, is marked with a capital not lower case "i", so it appears "h" is followed by "I".  The citation should be corrected to read "i".  
                                                                               
State only definitions:  "community water system (CWS)", "potable drinking water well", "public water system", "
No federal analogs; 280, Subpart B related
33.1-24-08-03.11, .45, and .46 
(see first column for terms)
                                      OK
                                       
                                       
                                       
                                                                               
Review Comment:  These three terms are included in the Energy Policy Act of 2005 and were initially intended to be used as types of landmarks that provided a geographic radius around which new or upgraded USTs would require secondary containment and likewise which new dispenser systems would require under dispenser containment.  However, in the July 15, 2015 rule as adopted, EPA is requiring all new and replaced tanks and piping to install secondary containment and new dispenser systems to install UDC.  Therefore, these definitions that appear in the EPAct are not relied upon, and are not found, in the federal regulations.  It is acceptable that North Dakota includes these definitions; however, the state does not rely on the definitions for any regulatory purpose and may wish to remove them as unnecessary.   
                                                                               
State only definition:  "red tag"
No federal analog; 281.41 related
33.1-24-08-03.47 "red tag"
                                      OK
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota includes this state-only definition that defines a red tag as a device used to indicate a UST as ineligible for product delivery.  This definition is related to the state's delivery prohibition enforcement mechanism and is acceptable.
                                                                               
State-only definition:  "transfer operator"
No federal analog; 280.20 related
33.1-24-08-03.61 "transfer operator"
                                      OK
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota defines this term as "any person who delivers or deposits product into an underground storage tank" and provides examples of such operators.  Although not defined in the federal program, the term is used with respect to the transfer of substances into tanks and discussed in relation to performance standards for spill and overfill equipment.  Specifically, at 40 CFR 280.20(c)(1)(ii)(B) and (C) [state analogs 33.1-24-08-10.3.a(2)(b) and (c)] the provisions address conditions under which spill prevention equipment must alert the transfer operator.  This state-only definition adds clarity to the state program but does not affect stringency and is acceptable.  
                                                                               
State-only definition:  unattended cardtrol facility
No federal analog
33.1-24-08-03.67 "unattended cardtrol facility"
                                      OK
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota defines this type of facility as a facility "where control of the dispensing of a regulated substance is through a mechanical or electronic method without the constant onsite presence of a class A, class B, or class C operator."  While the term is neither used nor defined in the federal program, the EPA recognizes that these types of facilities exist and refers to them as "unattended UST facilities" (see discussion under "Who Must Be Trained" at 80 FR 41572, first column).  The state-only definition adds clarity to the state program but does not affect stringency and is acceptable.  
                                                                               
Subpart B  -  UST Systems:  Design, Construction, Installation and Notification
                                                                               
Performance standards for new UST systems.
280.20 intro.
33.1-24-08-10 intro.
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  There is an internal reference error in this paragraph.  In lines 4 and 5, North Dakota references "paragraphs (a) through (e) of subdivision (2) of subsection 2 of 33.1-24-08-31".  In order to correspond to the federal reference to 280.41(b)(1)(ii)(A) through (E), the state's internal reference should read "subparagraphs (a) through (e) of paragraph (2) of subdivision a of subsection 2 of 33.1-24-08-31".
                                                                               
Performance standards for new UST systems  -  Tanks
280.20(a) 
33.1-24-08-10.1 
                                       X
                                       
                                       
                                       
                                                                               
Performance standards for new UST systems  -  Piping
280.20(b) intro. and (1)  -  (3)
33.1-24-08-10.2 intro. and .a  -  .c
                                       X
                                       
                                       
                                       
                                                                               
Performance standards for new UST systems  -  Piping construction and corrosion protection determined by department
280.20(b)(4)
33.1-24-08-10.2.d
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error in this paragraph:  the "; or" at the end of (2)(d) does not belong; it should be removed and replaced with a period (".").
                                                                               
Performance standards for new UST systems  -  Spill and overfill protection equipment
280.20(c)
33.1-24-08-10.3
                                       X
                                       
                                       
                                       
                                                                               
Performance standards for new UST systems  -  Installation
280.20(d)
33.1-24-08-10.5
                                       X
                                       
                                       
                                       
                                                                               
Performance standards of new UST systems  -  Certification of Installation
280.20(e)
33.1-24-08-10.6
                                       X
                                       
                                       
                                       
                                                                               
Performance standards of new UST systems  -  Dispenser systems
280.20(f)
33.1-24-08-10.4
                                       X
                                       
                                       
                                       
                                                                               
Upgrading of existing UST systems.
280.21 intro. 
33.1-24-08-11 intro. 
                                       X
                                       
                                       
                                       
                                                                               
Upgrading of existing UST systems  -  Alternatives allowed
280.21(a)
33.1-24-08-11.1
                                       X
                                       
                                       
                                       
                                                                               
Upgrading of existing UST systems  -  Tank upgrading requirements
280.21(b)
33.1-24-08-11.2
                                       X
                                       
                                       
                                       
                                                                               
Upgrading of existing UST systems  -  Piping upgrading requirements
280.21(c)
33.1-24-08-11.3
                                       X
                                       
                                       
                                       
                                                                               
Upgrading of existing UST systems  -  Spill and overfill prevention equipment
280.21(d)
33.1-24-08-11.4
                                       X
                                       
                                       
                                       
                                                                               
Notification requirements  -  after May 8, 1986
280.22(a)
33.1-24-08-12.1
                                       X
                                       
                                       
                                       
                                                                               
Notification requirements  -  within 30 days of acquisition
280.22(b)
33.1-24-08-12.2
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error in this provision:  in the last line the phrase "or a" should be inserted in front of "state form in accordance with subsection 3."  
                                                                               
Notification requirements  -  differences of state law
280.22(c)
No state analog
                                      OK
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota does not have an analog to this federal provision which addresses states where state law, regulations, or procedures require facility owners to use forms different than the federal forms.  North Dakota uses forms that contain the same information as the federal.  Thus, it is acceptable North Dakota did not adopt this provision.  
                                                                               
Notification requirements  -  owners required to submit notices under 280.22(a) or (b).
280.22(d)
33.1-24-08-12.3
                                       X
                                       
                                       
                                       
                                                                               
State-only provision  -  owners required to submit notices under 33.1-24-08-12.1
No federal analog in 280.22
33.1-24-08-12.4
                                       X
                                   (MCL/CON)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota includes a paragraph requiring notices submitted under 33.1-24-08-12.1 [40 CFR 280.22(a) to include all the information in sections I through VI of the prescribed form [analog to federal form sections I through X] for each tank for which notice must be given.  This paragraph is consistent with the federal regulations which provide nearly identical information in the Note to paragraph 280.22(a) which is non-binding.  It is arguably more clear that North Dakota inserted this into the regulations rather than relying on a non-binding note as in the federal.  This adds clarity to the state program but does not affect stringency and is acceptable. 
                                                                               
Notification requirements.  
280.22(e)
33.1-24-08-12.5
                                       X
                                       
                                       
                                       
                                                                               
Notification requirements  -  owners and operators of new UST systems  
280.22(f) 
33.1-24-08-12.7 
                                       X
                                       
                                       
                                       
                                                                               
Notification requirements  -  beginning October 24, 1988   
280.22(g) 
33.1-24-08-12.6
                                       X
                                       
                                       
                                       
                                                                               
                 Subpart C  -  General Operating Requirements
                                                                               
Spill and overfill control. 
280.30
33.1-24-08-20
                                       X
                                       
                                       
                                       
                                                                               
Operation and maintenance of corrosion protection.
280.31
33.1-24-08-21
                                       X
                                       
                                       
                                       
                                                                               
Compatibility.
280.32
33.1-24-08-22
                                       X
                                       
                                       
                                       
                                                                               
Repairs Allowed.
280.33, except 280.33(a) Note, (d)(3), and (d) Note
33.1-24-08-23, except 33.1-24-08-23.1 Note, 4.c, and .4 Note
                                       X
                                       
                                       
                                       
                                                                               
Repairs Allowed.
280.33(a) Note
33.1-24-08-23.1 Note
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  The note associated with provision 33.1-24-08-23.1 includes two typographical errors.  The state should correct these errors by removing the phrase "Recommended Practice for the" at line 6 and the word "by" at line11.  
                                                                               
Repairs Allowed.
280.33(d)(3)
33.1-24-08-23.4.c
                                       X
                                    (REF) 
                                       
                                       
                                       
                                                                               
Review Comment:  At the end of 33.1-24-08-23(4)(c) the state uses "those listed above" to refer to subdivisions a and b.  For clarity, North Dakota may wish to revise "those listed above" to "those listed in subdivisions a and b above" to more accurately correspond to the federal internal reference to 280.33(d)(1) and (d)(2).
                                                                               
Repairs Allowed.
280.33(d) Note
33.1-24-08-23.4 Note
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  The note associated with provision 33.1-24-08-23.4.c includes a typographical error.  At line 2:  the state should revise the internal reference from "subsection 4 of this subsection" to read "subsection 4 of this section".  
                                                                               
Reporting and recordkeeping.
280.34 intro.
33.1-24-08-24 intro.
                                       X
                                       
                                       
                                       
                                                                               
Reporting and recordkeeping.  -  Reporting
280.34(a)
33.1-24-08-24.1
                                       X
                                       
                                       
                                       
                                                                               
Reporting and recordkeeping.  -  Recordkeeping
280.34(b), except (b)(2) and (b)(9)
33.1-24-08-24.2, except .2.b
                                       X
                                       
                                       
                                       
                                                                               
Reporting and recordkeeping  -  documentation of operation of corrosion protection equipment
280.34(b)(2)
33.1-24-08-24.2.b
                                       X
                                   (LCL/REF)
                                       
                                       
                                       
                                                                               
Review Comment:  For consistency and clarity, the state may wish to revise the internal reference "section 33.1-24-08-21" to the more specific "subsection 4 of 33.1-24-08-21" to correspond to the federal reference to 280.31(d).
                                                                               
Reporting and recordkeeping  -  documentation of operator training
280.34(b)(9)
No state analog
                                       X
                                   (LCL/INC)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota has no analog this federal provision which requires owners and operators to maintain records documenting operator training in compliance with 40 CFR 280.245.  The omission makes the state's regulations internally inconsistent, inconsistent with federal, and less clear than federal.  At section 33.1-24-08-48 (analog to 280.245), the state, like federal, requires owners and operators to maintain operator training records "in accordance with section 33.1-24-18-24"; however, at section 33.1-24-18-24.2, the state does not have the item on this list of required documents.  For clarity and consistency, North Dakota should adopt an analog to 280.34(b)(9) in section 33.1-24-08-24.2.
                                                                               
Reporting and recordkeeping.
280.34(c) intro.
33.1-24-08-24.3 intro.
                                       X
                                       
                                       
                                       
                                                                               
Reporting and recordkeeping.
280.34(c)(1) & (2)
33.1-24-08-24.3.a & 3.b
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error affecting these provisions.  In order to make it clear that owners and operators may choose between the provisions in 33.1-24-08-24.3.a  and 33.1-24-08-24.3.b , the state should add the word "or" following the semi colon at the end of subdivision 33.1-24-08-24.3.a and replace "; or" at the end of subdivision 33.1-24-08-24.3.b with a period.  
                                                                               
Reporting and recordkeeping.
280.34(c)(3)
33.1-24-08-24.3.c
                                       X
                                   (REF/LCL)
                                       
                                       
                                       
                                                                               
Review Comment:  The internal reference at the last line of this provision is less clear than federal.  For clarity, the state may choose to revise the internal reference from "as indicated above" to "subdivisions a and b above" to properly correspond to the federal reference to paragraphs (c)(1) and (c)(2). 
                                                                               
Periodic testing of spill prevention equipment and containment sumps used for interstitial monitoring of piping and periodic inspection of overfill prevention equipment.
280.35
33.1-24-08-25
                                       X
                                       
                                       
                                       
                                                                               
Periodic operation and maintenance walkthrough inspections.
280.36, except 280.36(a)(2)
33.1-24-08-26, except 33.1-24-08-26.1.b
                                       X
                                       
                                       
                                       
                                                                               
Periodic operation and maintenance walkthrough inspections.
280.36(a)(2)
33.1-24-08-26.1.b
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota has an internal reference error in this paragraph:  in the last line the state references "subdivision a of subsection 1 of section 33.1-24-08-25" [analogous to 40 CFR 280.35(a)(1)] instead of its analog to 280.36(a)(1).  The state should correct its internal reference to read "subdivision a of subsection 1 of section 33.1-24-08-26".  
                                                                               
                        Subpart D  -  Release Detection
                                                                               
General requirements for all UST systems.
280.40, except 280.40(a)(4) and (b)
33.1-24-08-30, except 33.1-24-08-30.1.d and 2. 
                                       X
                                       
                                       
                                       
                                                                               
General requirements for all UST systems  -  meets performance requirements.
280.40(a)(4)
33.1-24-08-30.1.d 
                                       
                                       X
                                   (REF/LCL)
                                       
                                       
                                                                               
Review Comments:  
 In the first internal reference, which in the federal reads "§280.43, §280.44, or subpart K" the state references "33.1-24-08-33, 33.1-24-08-34, 33.1-24-08-70, 33.1-24-08-71, or 33.1-24-08-72"; however, this approach is less clear because the state's reference does not make it clear that sections 33.1-24-08-70, 33.1-24-08-71, and 33.1-24-08-72 are all part of the state's analog to the federal subpart K of part 280.  To correct this clarity issue and to properly correspond to the federal internal reference, the state should cite instead to "33.1-24-08-33, 33.1-24-08-34, or 33.1-24-08-70 through 33.1-24-08-72".
 Line 5: North Dakota has omitted references to the methods found at 280.43(h) and (i), addressing "Statistical inventory reconciliation" and "Other methods", respectively.  The omission of these two methods may affect the stringency of the state's program because the federal program requires all of the listed methods to be capable of detecting a specific leak rate or quantity with a certain probability of detection.  The state should revise its internal reference to read "listed in subsections 2, 3, 4, 8, and 9 of section 33.1-24-08-33;".
   As of 12/3/2018  -  Resolved: ND has committed to address the internal reference errors in near-term updates. 
                                                                               
General requirements for all UST systems.
280.40(b)
33.1-24-08-30.2 
                                       X
                                   (LCL/REF)
                                       
                                       
                                       
                                                                               
Review Comment:  As indicated in Review Comment 1 for 280.40(a), for clarity, North Dakota should correct its first internal reference by replacing "33.1-24-08-33, 33.1-24-08-34 and 33.1-24-08-70, 33.1-24-08-71, or 33.1-24-08-72" with "33.1-24-08-33, 33.1-24-08-34, or 33.1-24-08-70 through 33.1-24-08-72" in order to correspond to the federal reference to "§280.43, §280.44, or subpart K".
                                                                               
Requirements for petroleum UST systems.
280.41
33.1-24-08-31
                                       X
                                       
                                       
                                       
                                                                               
Requirements for hazardous substance UST systems.
280.42, except Note to 280.42(a)
33.1-24-08-32, except Note to 33.1-24-08-32 subsection 1
                                       X
                                       
                                       
                                       
                                                                               
Requirements for hazardous substance UST systems.
Note to 280.42(a)
Note to 33.1-24-08-32 subsection 1
                                      OK
                                       
                                       
                                       
                                                                               
Methods of release detection for tanks.
280.43
33.1-24-08-33
                                       X
                                       
                                       
                                       
                                                                               
Methods of release detection for piping.
280.44 intro.
33.1-24-08-34 intro.
                                       X
                                   (LCL/INC)
                                       
                                       
                                       
                                                                               
Review Comment:  In addition to its internal reference to federal 280.41 [state analog 33.1-24-08-31], North Dakota requires that each method of release detection for piping used to meet the requirements of subsection 2 of section 33.1-24-08-10 [federal 280.20(b)] and 33.1-24-08-31 [federal 280.41] must be conducted in accordance with the 280.44 requirements.  Note that 280.20(b) [Performance standards for new UST systems  -  piping] does not address the same requirements as 280.41 [Requirements for petroleum UST systems] and it is unclear why the state's analog to 280.20(b) has been referenced here.  In order to be consistent with federal the state may wish to remove this additional internal reference to "subsection 2 of section 33.1-24-08-10" because it is internally inconsistent, inconsistent with the federal, and less clear than federal.  For historical context, this reference did not appear in the state's provision when it was first authorized.  
                                                                               
Methods of release detection for piping  -  Automatic line leak detectors.
280.44(a)
33.1-24-08-34.1 
                                       X
                                       
                                       
                                       
                                                                               
Methods of release detection for piping  -  Line tightness testing.
280.44(b)
33.1-24-08-34.2
                                       X
                                       
                                       
                                       
                                                                               
Methods of release detection for piping  -  Applicable tank methods.
280.44(c)
33.1-24-08-34.3
                                       X
                                       
                                       
                                       
                                                                               
Release detection recordkeeping.
280.45
33.1-24-08-35
                                       X
                                       
                                       
                                       
                                                                               
       Subpart E  -  Release Reporting, Investigation, and Confirmation
                                                                               
Reporting of suspected releases.
280.50
33.1-24-08-40
                                       X
                                       
                                       
                                       
                                                                               
Investigation due to off-site impacts.
280.51
33.1-24-08-41
                                       X
                                       
                                       
                                       
                                                                               
Release investigation and confirmation steps.
280.52
33.1-24-08-42
                                       X
                                       
                                       
                                       
                                                                               
Reporting and cleanup of spills and overfills.
280.53
33.1-24-08-43
                                       X
                                       
                                       
                                       
                                                                               
             Subpart F  -  Release Response and Corrective Action
          for UST Systems Containing Petroleum or Hazardous Substance
                                                                               
General.
280.60
33.1-24-08-50
                                       X
                                       
                                       
                                       
                                                                               
Initial response.
280.61
33.1-24-08-51
                                       X
                                       
                                       
                                       
                                                                               
Initial abatement measures and site check.
280.62
33.1-24-08-52
                                       X
                                       
                                       
                                       
                                                                               
Initial site characterization.
280.63
33.1-24-08-53
                                       X
                                       
                                       
                                       
                                                                               
Free product removal.
280.64
33.1-24-08-54
                                       X
                                       
                                       
                                       
                                                                               
Investigations for soil and groundwater cleanup.
280.65
33.1-24-08-55
                                       X
                                       
                                       
                                       
                                                                               
Corrective action plan.
280.66
33.1-24-08-56
                                       X
                                       
                                       
                                       
                                                                               
Public participation.
280.67
33.1-24-08-57
                                       X
                                       
                                       
                                       
                                                                               
             Subpart G  -  Out-of-Service UST Systems and Closure
                                                                               
Temporary closure.
280.70
33.1-24-08-60
                                       X
                                       
                                       
                                       
                                                                               
Permanent closure and changes-in-service. 
280.71
33.1-24-08-61
                                       X
                                       
                                       
                                       
                                                                               
Assessing the site at closure or change-in-service.
280.72
33.1-24-08-62
                                       X
                                       
                                       
                                       
                                                                               
Applicability to previously closed UST systems.
280.73
33.1-24-08-63
                                       X
                                       
                                       
                                       
                                                                               
Closure records.
280.74
33.1-24-08-64
                                       X
                                       
                                       
                                       
                                                                               
                    Subpart H  -  Financial Responsibility
                                                                               
Applicability - Subpart.
280.90(a)
33.1-24-08-80.1
                                       X
                                       
                                       
                                       
                                                                               
Applicability  -  Owners and operators of petroleum UST systems.
280.90(b)
33.1-24-08-80.2
                                       X
                                       
                                       
                                       
                                                                               
Applicability  -  State and Federal government exemption.
280.90(c)
33.1-24-08-80.3
                                       X
                                       
                                       
                                       
                                                                               
Applicability  -  Owners and operators excluded.
280.90(d)
33.1-24-08-80.4
                                       X
                                   (LCL/REF)
                                       
                                       
                                       
                                                                               
Review Comment:  In this provision North Dakota uses a less clear internal reference that may cause confusion in the regulated community.  The state's internal reference to "subsections 2 and 3 of section 33.1-24-08-01" as the analog to federal "280.10(b), (c)(1), (c)(3), or (c)(4)" includes references to specific types of aboveground storage tanks at 33.1-24-08-01.3.b.  While the state's language indicates the financial responsibility requirements apply only to USTs, for increased clarity, the state may wish to change the internal reference to read "subsection 2 of section 33.1-24-08-01 and subdivisions a, c, and d of subsection 3 of section 33.1-24-08-01" to omit reference to the provision addressing aboveground storage tanks.
                                                                               
Applicability  -  Separate owner and operator.
280.90(e)
33.1-24-08-80.5
                                       X
                                       
                                       
                                       
                                                                               
Compliance dates. 
280.91
33.1-24-08-81
                                       X
                                       
                                       
                                       
                                                                               
Definition of terms.
280.92, except as listed below
33.1-24-08-82, except as listed below
                                       X
                                       
                                       
                                       
                                                                               
Definition of terms  -  Director of the implementing agency
280.92 Director of the implementing agency
33.1-24-08-82 "Department"
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  In lieu of the federal term "Director of the Implementing Agency" North Dakota uses "Department" to mean the department of environmental quality, which should be acceptable.  The state may wish to correct a typographical error by adding a closing quotation mark after the term "Department".
                                                                               
Definition of terms  -  Financial reporting year
280.92 Financial reporting year
33.1-24-08-82.6 "Financial reporting year"
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  At subdivision c, the state may wish to correct a typographical error by removing the extra period at the end of this subdivision.
                                                                               
Definition of terms:  -  Local government
280.92 Local government
33.1-24-08-82.8 "Local government"
                                       X
                                     (OK)
                                       
                                       
                                       
                                                                               
Review Comment:  The state has omitted the phrase "and includes Indian tribes" from the state's definition of "Local government".  It appears this omission was intentional as the Department does not define tribes in this manner which is acceptable.  
                                                                               
Definition of terms  -  Substantial business relationship
280.92 Substantial business relationship
33.1-24-08-82.14 "Substantial business relationship"
                                       X
                                       
                                       
                                       
                                                                               
Amount and scope of required financial responsibility.
280.93
33.1-24-08-83
                                       X
                                       
                                       
                                       
                                                                               
Allowable mechanisms and combinations of mechanisms.
280.94
33.1-24-08-84
                                       X
                                       
                                       
                                       
                                                                               
Financial test of self-insurance.
280.95(a)
33.1-24-08-85.1
                                       X
                                       
                                       
                                       
                                                                               
Financial test of self-insurance.
280.95(b), except (b)(1)(iii)
33.1-24-08-85.2, except 2.a(3)
                                       X
                                       
                                       
                                       
                                                                               
Financial test of self-insurance.
280.95(b)(1)(iii)
33.1-24-08-85.2.a(3)
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  For increased clarity and consistency with federal, North Dakota may choose to change the internal reference "chapter 33.1-25-01" to read "subsection 5 of section 33-25-01-10", which specifically addresses financial tests, in order to correspond to the federal reference "40 CFR 144.63", which addresses financial assurance plugging and abandonment. 
                                                                               
Financial test of self-insurance
280.95(c)
33.1-24-08-85.3.
                                       X
                                       
                                       
                                       
                                                                               
Financial test of self-insurance  -  Demonstration
280.95(d)
33.1-24-08-85.4
                                       X
                                 (REF/LCL/TYP)
                                       
                                       
                                       
                                                                               
Review Comments:  
 Letter from Chief Financial Officer, paragraph1, lines 5 and 6: The state should consider removing the clause "; terms of the policy, and/" which is not included in the federal analog and appears to be a typographical error.  
 Letter from Chief Financial Officer, paragraph 2, last line:  For clarity, the state should replace the internal reference reading "state requirements" with "section 33.1-24-08-12" to properly correspond to the federal reference to "40 CFR 280.22".   
 Letter from Chief Financial Officer:  Under the list of EPA regulations, the state should correct typographical errors by replacing the quotation marks at "''264.143", "''264.145", "''264.147", "''264.101", and "'144.63" with the section symbol as follows, "§§264.143", "§§264.145", "§§264.147", "§264.101", and "§144.63".  This is a common formatting translation error with different versions of MS Word.
                                                                               
Financial test of self-insurance  -  owner or operator no longer meets financial test requirements.
280.95(e)
33.1-24-08-85.5
                                       X
                                       
                                       
                                       
                                                                               
Financial test of self-insurance  -  department may require reports of financial condition at any time.
280.95(f)
33.1-24-08-85.6
                                       X
                                       
                                       
                                       
                                                                               
Financial test of self-insurance  -  owner or operator fails to obtain alternative assurance.
280.95(g)
33.1-24-08-85.7
                                       X
                                       
                                       
                                       
                                                                               
Guarantee.
280.96(a)
33.1-24-08-86.1
                                       X
                                       
                                       
                                       
                                                                               
Guarantee  -  guarantor must demonstrate it meets financial test criteria.
280.96(b)
33.1-24-08-86.2
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  The last sentence of the state provision includes an incorrect internal reference reading "subsection 3 of section 33.1-24-08-104".  North Dakota should revise the internal reference to read "subsection 5 of section 33.1-24-08-104" which corresponds to the internal reference within the federal analog reading "§ 280.114(e)".
                                                                               
Guarantee  -  Wording.
280.96(c)
33.1-24-08-86.3
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error within the Guarantee.  At line 7 within paragraph (2), the state should insert a closing bracket following the sentence reading "...of the facility.]".  
                                                                               
Guarantee  -  owner or operator must establish standby trust.
280.96(d)
33.1-24-08-86.4
                                       X
                                       
                                       
                                       
                                                                               
Insurance and risk retention group coverage.
280.97(a)
33.1-24-08-87.1
                                       X
                                       
                                       
                                       
                                                                               
Insurance and risk retention group coverage  -  insurance policy must be amended by an endorsement.
280.97(b) intro.
33.1-24-08-87.2 intro.
                                       X
                                       
                                       
                                       
                                                                               
Insurance and risk retention group coverage  -  Endorsement.
280.97(b)(1)
33.1-24-08-87.2.a 
                                       X
                                   (MCLREF)
                                       
                                       
                                       
                                                                               
Review Comments:  
 Within the line items preceding Item 1of the Endorsement, the state requires that the "Name of [Insurer or Risk Retention Group]" be provided whereas the federal analog omits this requirement.  It is reasonable to assume that this information was intended to be included in federal as they require the "Address of [Insurer or Risk Retention Group]. Thus, North Dakota is more clear than federal because they are correcting this omission but stringency is not affected.
 Within Item 2.b of the Endorsement, the state's internal reference to "sections 33.1-24-08-85 through 33.1-24-08-92 and 33.1-24-08-97" as the analog to the federal internal reference of "40 CFR 280.95 - 280.102 and 280.104 - 280.107" is less inclusive as it omits reference to analogs for federal sections 280.104 through 280.106.  North Dakota should amend the internal reference to read "sections 33.1-24-08-85 through 33.1-24-08-92 and 33.1-24-08-94 through 33.1-24-08-97". 
                                                                               
Insurance and risk retention group coverage  -  Certificate of Insurance.
280.97(b)(2)
33.1-24-08-87.2.b 
                                    X (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  Within Item 2b of the Certificate, the state's internal reference to "sections 33.1-24-08-85 through 33.1-24-08-92 and 33.1-24-08-97" as the analog to the federal internal reference of "40 CFR 280.95 - 280.102 and 280.104 - 280.107" is less inclusive as it omits reference to analogs for federal sections 280.104 through 280.106.  North Dakota should amend the internal reference to read "sections 33.1-24-08-85 through 33.1-24-08-92 and 33.1-24-08-94 through 33.1-24-08-97".
                                                                               
Insurance and risk retention group coverage  -  each insurance policy must be issued by an insurer or a risk retention group.
280.97(c)
33.1-24-08-87.3
                                       X
                                       
                                       
                                       
                                                                               
Surety bond.
280.98(a)
33.1-24-08-88.1
                                       X
                                       
                                       
                                       
                                                                               
Surety bond  -  wording of surety bond.
280.98(b)
33.1-24-08-88.2
                                       X
                                       
                                       
                                       
                                                                               
Surety bond  -  when surety will become liable.
280.98(c)
33.1-24-08-88.3
                                       X
                                       
                                       
                                       
                                                                               
Surety bond  -  owner or operator must establish a standby trust.
280.98(d)
33.1-24-08-88.4
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  In line 5, North Dakota should revise the internal reference "section 33.1-24-08-98" to read "section 33.1-24-08-102" which corresponds to federal analog's internal reference reading "§ 280.112". 
                                                                               
Letter of credit.
280.99(a)
33.1-24-08-89.1
                                       X
                                       
                                       
                                       
                                                                               
Letter of credit  -  Wording.
280.99(b)
33.1-24-08-89.2
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There appears to be a typographical error within the last sentence of the wording for the "Irrevocable Standby Letter of Credit" on page 93.  The state provision omits the words "and copyrighted" after "published".  but the wording is included in the federal version of this letter.  North Dakota should revise the provision to read "published and copyrighted".
                                                                               
Letter of credit  -  owner or operator must establish a standby trust.
280.99(c)
33.1-24-08-89.3
                                       
                                       
                                       
                                       
                                                                               
Letter of credit  -  must be irrevocable.
280.99(d)
33.1-24-08-89.4
                                       X
                                       
                                       
                                       
                                                                               
Use of state-required mechanism.
280.100
No state analog
                                      NA
                                       
                                       
                                       
                                                                               
Review Comment:  Authorized states are not required to have an analog to this provision as it only applies in unauthorized states.
                                                                               
State fund or other state assurance.
280.101
No state analog
                                      NA
                                       
                                       
                                       
                                                                               
Review Comment:  Authorized states are not required to have an analog to this provision as it only applies in unauthorized states.
                                                                               
Trust fund.
280.102
33.1-24-08-92
                                       X
                                       
                                       
                                       
                                                                               
Standby trust fund.
280.103(a)
33.1-24-08-93.1
                                       X
                                       
                                       
                                       
                                                                               
Standby trust fund  -  Wording of Trust Agreement.
280.103(b)(1)
33.1-24-08-93.2.a
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There are several typographical errors within the Trust Agreement.  
 At line 8 of the second paragraph preceding Section 1 (Definitions) (page 95), the state should remove the "standby" after the word "insert" as it appears to be a typographical error.  
 In Sections 3, 4, and 14, the state includes brackets around words and phrases associated with the department.  In other financial assurance sections and other provisions within this section, the state has consistently replaced "[implementing agency]", "[the Director of the implementing agency's]", and "[the Director of the implementing agency]" with "the department", "the department's", and "the department", respectively.  North Dakota should remove the brackets from:  (a) "[the department]" and "[department's]" respectively at lines 2 and 6 within Section 3 (page 96); (b) "[the department]" at line 1 of Section 4 introductory paragraph (page 96); and (c) "[the department]" at line 2 of Section 14 (page 100).
 At line 3 of Section 4, introductory paragraph (page 96), the state should replace the hyphen with a space in "third-parties".
                                                                               
Standby trust fund  -  formal certification of acknowledgment.
280.103(b)(2)
33.1-24-08-93.2.b
                                       X
                                       
                                       
                                       
                                                                               
Standby trust fund  -  depart will instruct the trustee to refund the balance of the standby trust.
280.103(c)
33.1-24-08-93.3
                                       X
                                       
                                       
                                       
                                                                               
Standby trust fund  -  owner or operator may establish one trust fund.
280.103(d)
33.1-24-08-93.4
                                       X
                                       
                                       
                                       
                                                                               
Local government bond rating test  -  general purpose local government.
280.104(a)
33.1-24-08-94.1
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  At line 3, the state has omitted the phrase "by having a" in front of "currently outstanding".  This omission appears to be a typographical error as the phrase is included in the federal analog and a similar state provision at 33.1-24-08-94.2 (analog to 280.104(b)).  North Dakota should insert the missing phrase.   
                                                                               
Local government bond rating test  -  not a general-purpose local government.
280.104(b)
33.1-24-08-94.2
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  The state has omitted the hyphen between the words "general" and "purpose" at line 2 of this provision.  The state may wish to correct the typographical error so the words read "general-purpose".
                                                                               
Local government bond rating test  -  maintain a copy of the bond rating.
280.104(c)
33.1-24-08-94.3
                                       X
                                       
                                       
                                       
                                                                               
Local government bond rating test  -  Wording of the letter from Chief Financial Officer.
280.104(d)
33.1-24-08-94.4
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error in the first paragraph of the Letter From the Chief Financial Officer.  Within the bracketed text at lines 5 and 6 the state provision includes "and/" and omits the phrase "or "accidental releases"".  The state provision should be revised to read "[insert:  "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"]".  
                                                                               
Local government bond rating test.
280.104(e)
33.1-24-08-94.5
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There are typographical errors in this provision.   
 The second and third paragraphs on page 103, and the language [Date] at the top of page 104 appear to have been included in error at this location and should be removed.  Note that, like federal, the two paragraphs are included at the end of the Letter.  North Dakota should also insert "[Date]" in the line above "[Signature]" at the bottom of the provision on page 104.  
 Within the first paragraph of the Letter From the Chief Financial Officer on page 104, the bracketed text at lines 5 and 6 includes "sudden accidental releases and/or nonsudden accidental releases" whereas the federal analog reads "sudden accidental releases or nonsudden accidental releases.  
                                                                               
Local government bond rating test  -  the department may require reports of financial condition at any time.
280.104(f)
33.1-24-08-94.6
                                       X
                                       
                                       
                                       
                                                                               
Local government bond rating test  -  if local government no longer meets the bond rating test requirements.
280.104(g)
33.1-24-08-94.7
                                       X
                                       
                                       
                                       
                                                                               
Local government bond rating test  -  if local government fails to obtain alternate assurance.
280.104(h)
33.1-24-08-94.8
                                       X
                                       
                                       
                                       
                                                                               
Local government financial test.
280.105(a)
33.1-24-08-95.1
                                       X
                                       
                                       
                                       
                                                                               
Local government financial test  -  information that must be available.
280.105(b)
33.1-24-08-95.2
                                       X
                                       
                                       
                                       
                                                                               
Local government financial test  -  demonstration that local government meets the financial test.
280.105(c)
33.1-24-08-95.3
                                       X
                                   (TYP/INC)
                                       
                                       
                                       
                                                                               
Review Comments:  There are several typographical errors within the Worksheet For Municipal Financial Test.   
 At items numbered 7.e, 8.e, 10.e, and 15.e, North Dakota's numbers have periods instead of the commas found in the federal numbers.  This makes the state's numbers significantly smaller than, and inconsistent with the federal numbers yielding incorrect results compared to federal.  The state should correct these numbers at items numbered 7.e, 8.e, 10.e, and 15.e to respectively read "5,212", "5,401", "1,038", and "4,548".  
 Also, at items numbered 10.f and 11.f the letter "B" should be changed to a minus symbol such that 10.f reads "Multiply by -1.866" and 11.f reads "Multiply by -3.533".
                                                                               
Local government financial test  -  if owner or operator no longer meets financial test requirements.
280.105(d)
33.1-24-08-95.4
                                       X
                                       
                                       
                                       
                                                                               
Local government financial test  -  department may require reports of financial condition at any time.
280.105(e)
33.1-24-08-95.5
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  At line 4, North Dakota should correct the ""subsections 2 and 5" internal reference to read "subsections 2 and 3" to correspond to the internal reference within the federal analog reading "§ 280.105(b) and (c)".
                                                                               
Local government financial test  -  if local government fails to obtain alternate assurance.
280.105(f)
33.1-24-08-95.6
                                       X
                                       
                                       
                                       
                                                                               
Local government guarantee.
280.106(a)
33.1-24-08-96.1
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comments:  
 There is a typographical error at line 3 of the introductory paragraph.  North Dakota should replace the word "estate" with the word "state".  
 The state includes periods at the end of subdivisions a. and b. whereas the federal analogs include a semicolon followed by the word "or".  This appears to be a typographical error in the state provisions because the guarantor need only meet the requirements of one of these subdivisions.  North Dakota should replace the period with "; or" at the end of subdivisions a. and b.
                                                                               
Local government guarantee  -  if local government guarantor is unable to demonstrate financial assurance.
280.106(b)
33.1-24-08-96.2 
                                       X
                                       
                                       
                                       
                                                                               
Local government guarantee  -  Wording of guarantee agreement.
280.106(c)
33.1-24-08-96.3
                                       X
                                       
                                       
                                       
                                                                               
Local government guarantee  -  local government guarantee with standby trust made by a state.
280.106(d)
33.1-24-08-96.4
                                       X
                                   (TYP/REF)
                                       
                                       
                                       
                                                                               
Review Comments:  
 There are 3 typographical errors in the Recitals for "Local Government Guarantee with Standby Trust Made by a State".  
 Page 114 - Item (3), third paragraph, line 6: remove the word "is" from the phrase "upon written instruction is from".  
 Page 114 - Item (3), third paragraph, line 8:  insert the word "to" before the phrase "satisfy such judgement(s)".  
 Page 115 - Item (8), fourth paragraph, line 3:  the word "area in the phrase "brackets area" should be replaced with "are".

 In the Recitals for "Local Government Guarantee with Standby Trust Made by a Local Government", North Dakota has a typographical error in Item (8)(b) (p. 117):  the state omitted a significant part of the provision that is included in the federal analog.  North Dakota should correct this typographical error by including language reading "arising from, and in the course of, employment by [insert: local government owner or operator]" before the semicolon at the end of this provision.  
                                                                               
Local government guarantee  -  local government without standby trust by a state.
280.106(e)
33.1-24-08-96.5
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  
 There are 2 typographical errors in the Recitals for "Local Government Guarantee Without Standby Trust Made by a State".  
 Page 120  -  Item (6), line 5:  the state should replace the word "of" in the phrase "notice of certified" with the word "by".
 Page 120 - 121: Item (8), third paragraph: A line reading "[Name of guarantor]" should be inserted following the line reading "Effective date:".  
 There is 1 typographical error in the Recitals for "Local Government Guarantee without Standby Trust Made by a Local Government".  
         Page 123 - Item (8)(a), line 2: The state should insert comma after "worker's compensation" and remove the comma after "disability" so that the phrase reads "workers' compensation, disability benefits, or unemployment" 
                                                                               
Local government fund.
280.107 intro. 
33.1-24-08-97. intro.
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  The state should correct a typographical error by inserting the word "by" between "33.1-24-08-83" and "establishing" for the phrase to read "satisfy the requirements of section 33.1-24-08-83 by establishing".
                                                                               
Local government fund.
280.107(a)  -  (d)
33.1-24-08-97.1 - .4
                                       X
                                     (LCL)
                                       
                                       
                                       
                                                                               
Review Comment:  The state includes periods at the end of subsections 1 and 2 where the federal analogs include a semicolon followed by the word "or".  The state's punctuation is potentially less clear than federal.  The provision in the preceding introductory paragraph indicates that only one of the following requirements must be met, thus making it appear that the allowable options for the state include subsections 1 through 4; whereas federal clearly has three options under paragraphs (a) through (c).  For increased clarity, North Dakota may choose to replace the period with "; or" at the end of subsections 1 and 2.  
                                                                               
Substitution of financial assurance mechanisms by owner or operator.
280.108
33.1-24-08-98
                                       X
                                       
                                       
                                       
                                                                               
Cancellation or nonrenewal by a provider of financial assurance.
280.109(a), except (a)(1)
33.1-24-08-99.1, except .1.a
                                       X
                                       
                                       
                                       
                                                                               
Cancellation or nonrenewal by a provider of financial assurance - termination of a local government guarantee, a guarantee, a surety bond, or a letter of credit".
280.109(a)(1)
33.1-24-08-99.1.a
                                       X
                                   (LCL/INC)
                                       
                                       
                                       
                                                                               
Review Comment:  The state omits the federal reference to "a local government guarantee" from the list of financial mechanisms.  The state's language is potentially less clear than federal and may affect equivalency because there are separate requirements for "guarantee" and "local government guarantee" and the termination requirement also applies to local government guarantee.  For increased clarity and consistency with federal, North Dakota should include "a local government guarantee," as in the federal.  
                                                                               
Cancellation or nonrenewal by a provider of financial assurance  -  if provider of financial responsibility fails to cancel or fails to renew
280.109(b)
33.1-24-08-99.2
                                       X
                                       
                                       
                                       
                                                                               
Reporting by owner or operator.
280.110(a)
33.1-24-08-100.1
                                       X
                                       
                                       
                                       
                                                                               
Reporting by owner or operator.
280.110(b) & (c)
33.1-24-08-100.2 & 3
                                       X
                                       
                                       
                                       
                                                                               
Recordkeeping.
280.111(a)
33.1-24-08-101.1
                                       X
                                       
                                       
                                       
                                                                               
Recordkeeping.
280.111(b)
33.1-24-08-101.2
                                       X
                                       
                                       
                                       
                                                                               
Drawing on financial assurance mechanisms.
280.112
33.1-24-08-102
                                       X
                                       
                                       
                                       
                                                                               
Release from the requirements.
280.113
33.1-24-08-103
                                       X
                                       
                                       
                                       
                                                                               
Bankruptcy or other incapacity of owner or operator or provider of financial assurance.
280.114
33.1-24-08-104
                                       X
                                       
                                       
                                       
                                                                               
Replenishment of guarantees, letters of credit, or surety bonds.
280.115(a)
33.1-24-08-105.1
                                       X
                                   (TYP/INC)
                                       
                                       
                                       
                                                                               
Review Comment:  There are two typographical errors in this section:
 In the introductory paragraph, the state has omitted the phrase "guarantee with standby trust" after "local government", whereas the federal analog reads "drawn from a guarantee, local government guarantee with standby trust, letter of credit, or surety bond".  For consistency with federal, the state should insert the missing language.   
 In subdivision b. of this subsection, the state omits the word "by" from the phrase reading "for the amount which funds" whereas within the federal analog the phrase reads "for the amount by which funds".  
                                                                               
Replenishment of guarantees, letters of credit, or surety bonds  -  the amount of coverage required.
280.115(b)
33.1-24-08-105.2
                                       X
                                       
                                       
                                       
                                                                               
Suspension of enforcement. 
280.116 [Reserved]
No state analog
                                      NA
                                       
                                       
                                       
                                                                               
                        Subpart I  -  Lender Liability
                                                                               
General Comments to Subpart I:  
 Throughout the state's analogs to federal Subpart I, the state frequently includes the internal reference reading "sections 33.1-24-08-41 through 33.1-24-08-57" for corrective action related costs and requirements.  The state's internal reference includes sections 33.1-24-08-45 through 48 which pertain to operator training and are not relevant to corrective action costs or requirements.  For increased clarity, North Dakota should correct this internal reference to read "sections 33.1-24-08-41 through 33.1-24-08-43 and 33.1-24-08-50 through 33.1-24-08-57" which are the appropriate analogs to federal sections 280.51 through 280.67 concerning corrective action.  

 The state reorganized section 33.1-24-08-115 to list the definitions in alphabetical order but did not make conforming changes to correct the internal references in provisions that reference definitions in 33.1-24-08-115.  Specific comments relative to this issue are documented for 33.1-24-08-125.2, 33.1-24-08-130.1, and line 33.1-24-08-130.2.b. 
                                                                               
Definitions  -  UST technical standards.
280.200(a)
33.1-24-08-115.7
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  The state includes the internal references reading "sections 33.1-24-08-10 through 33.1-24-08-35, sections 33.1-24-08-60 through 33.1-24-08-64" as the analog for the federal internal reference reading "subparts B, C, D, G, J, and K of this part".  The state's internal reference is incomplete because it omits reference to federal subpart J and K analogs at sections 33.1-24-08-45 through 33.1-24-08-48 and 33.1-24-08-70 through 33.1-24-08-72, respectively.  For completeness, North Dakota should revise the internal reference to read "sections 33.1-24-08-10 through 33.1-24-08-35, sections 33.1-24-08-45 through 33.1-24-08-48, sections 33.1-24-08-60 through 33.1-24-08-64, and 33.1-24-08-70 through 33.1-24-08-72". 
                                                                               
Definitions  -  Petroleum production, refining, and marketing.
280.200(b)
33.1-24-08-115.5
                                       X
                                       
                                       
                                       
                                                                               
Definitions  -  Indicia of ownership.
280.200(c)
33.1-24-08-115.3
                                       X
                                       
                                       
                                       
                                                                               
Definitions  -  Holder.
280.200(d)
33.1-24-08-115.2
                                       X
                                       
                                       
                                       
                                                                               
Definitions  -  Borrower, debtor, or obligor.
280.200(e)
33.1-24-08-115.1
                                       X
                                       
                                       
                                       
                                                                               
Definitions  -  Primarily to protect a security interest.
280.200(f)
33.1-24-08-115.6
                                       X
                                     (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  The state's internal reference reading "sections 33.1-24-08-115 through 33.1-24-08-130" within this provision does not include analogs within the federal internal reference to federal subparts J and K addressing operating training and UST systems with field-constructed tanks and airport hydrant fuel distribution systems.  For completeness, the state's internal reference should be revised to read "sections 33.1-24-08-45 through 33.1-24-08-48, 33.1-24-08-70 through 33.1-24-08-72, and 33.1-24-08-115 through 33.1-24-08-130". 
                                                                               
Definitions  -  Operation.
280.200(g)
33.1-24-08-115.4
                                       X
                                       
                                       
                                       
                                                                               
Participation in management.
280.210 intro. 
33.1-24-08-120 intro. 
                                       X
                                       
                                       
                                       
                                                                               
Participation in management.
280.210(a)
33.1-24-08-120.1 
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  The state omits "accounts payable/receivable manager" from the list of position titles within the second sentence of provision 33.1-24-08-120.1.b, the analog to federal 280.210(a)(2).  To correct what appears to be a typographical error, North Dakota should revise this sentence to include this position title.
                                                                               
Participation in management.
280.210(b)
33.1-24-08-120.2 
                                       X
                                       
                                       
                                       
                                                                               
Participation in management.
280.210(c) intro.
33.1-24-08-120.3 intro.
                                       X
                                       
                                       
                                       
                                                                               
Participation in management.
280.210(c)(1)
33.1-24-08-120.3.a
                                       X
                                       
                                       
                                       
                                                                               
Participation in management.
280.210(c)(2) intro.
33.1-24-08-120.3.b intro.
                                       X
                                       
                                       
                                       
                                                                               
Participation in management.
280.210(c)(2)(i)
33.1-24-08-120.3.b(1)
                                    X (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error at line 12 of this provision.  The state should revise the phrase reading "or a traded or other publication" to read "or a trade or other publication".
                                                                               
Participation in management.
280.210(c)(2)(ii)
33.1-24-08-120.3.b(2)
                                      X 
                                       
                                       
                                       
                                                                               
Participation in management.
280.210(c)(3)
33.1-24-08-120.3.c
                                       X
                                       
                                       
                                       
                                                                               
Ownership of an underground storage tank or underground storage tank system or facility or property on which an underground storage tank or underground storage tank system is located.
280.220 intro.
33.1-24-08-125 intro.
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  At the last line of this provision, the state omits the word "through" within its internal reference reading "under sections 33.1-24-08-80 33.1-24-08-101".  The state should correct this typographical error by changing the internal reference to read "under sections 33.1-24-08-80 through 33.1-24-08-101". 
                                                                               
Ownership of an underground storage tank or underground storage tank system or facility or property on which an underground storage tank or underground storage tank system is located  -  person does not participate in the management of UST.
280.220(a)
33.1-24-08-125.1
                                       X
                                       
                                       
                                       
                                                                               
Ownership of an underground storage tank or underground storage tank system or facility or property on which an underground storage tank or underground storage tank system is located  -  person does not engage in petroleum, refining, and marketing.
280.220(b)
33.1-24-08-125.2
                                    X (REF)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota should correct the internal reference "subsection 2 of section 33.1-24-08-115" to read "subsection 5 of 33.1-24-08-115" as the citation for the definition of petroleum production, refining, and marketing 
                                                                               
Operating an underground storage tank or underground storage tank system.
280.230, except (a) and (b)(2)
33.1-24-08-130, except .1 and 2.b
                                       X
                                       
                                       
                                       
                                                                               
Operating an underground storage tank or underground storage tank system.
280.230(a)
33.1-24-08-130.1
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  At line 6, North Dakota should correct the internal reference "subsection 1 of section 33.1-24-08-115" to read "subsection 7 of 33.1-24-08-115" as the citation for the definition of underground storage tank technical standards. 
                                                                               
Operating an underground storage tank or underground storage tank system.
280.230(b)(2)
33.1-24-08-130.2.b
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  At line 5, North Dakota should correct the internal reference "subsection 1 of section 33.1-24-08-115" to read "subsection 7 of 33.1-24-08-115" as the citation for the definition of underground storage tank technical standards.
                                                                               
                        Subpart J  -  Operator Training
                                                                               
General requirements for all UST systems.
280.240
33.1-24-08-45 intro., first paragraph, first sentence
                                       X
                                       
                                       
                                       
                                                                               
Designation of Class A, B, and C operators.
280.241
33.1-24-08-45 intro., first paragraph, second sentence
                                       X
                                   (INC/LCL)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota requires all facilities to designate Class A, B, and C operators for UST systems, except for unattended cardtrol facilities which are not required to designate Class C operators.  §280.241 of the federal UST regulations requires designation of (a) at least one Class A and one Class B operator; AND (b) each individual who meets the definition of Class C operator at the UST facility as a Class C operator.  Although the federal regulations do not directly address unattended facilities, the preamble to the federal UST regulations (80 FR 41566 at page 41572) states the following: "Nonetheless, even for unattended facilities, owners and operators must designate and train Class A, B and C operators." [emphasis added].  Because North Dakota does not require the designation of Class C operators, the provision is inconsistent with and potentially less clear than the federal.  It is understood that Class A and Class B operators have to be trained in the training requirements for the classes of operators below them in the operator hierarchy; thus, a Class A operator has received the training requirements for Class B and C operators.  Therefore, it follows that by designating A and B operators, facilities are by default designating Class C operators implicitly.  While the federal regulations are silent on unattended facilities, there is an instruction in the preamble of the federal rule as described which makes North Dakota at least inconsistent with the intent of the federal program.  However, this state-only exception does not appear to affect the stringency of the state's program.  The state may wish to clarify their regulation by making clear that designation of a Class C operator is still required for cardtrol facilities which can include the designation of current Class A and B operators as Class C operators for this purpose, as the state points out it is possible for one person to possess multiple designations (see the second paragraph of 33.1-24-08-45 intro.).

As of 12/3/2018: Resolved - ND has committed to clarify Class C operator requirement with respect to cardtrol facilities in future updates.  
                                                                               
State-only provision:  Operators onsite
No federal analog 280.241 related
33.1-24-08-45 intro., first paragraph, third sentence
                                      OK
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota has an additional provision requiring that Class A, B, or C operators be present onsite during facility operation, except at unattended cardtrol facilities.  This sentence adds clarity and is consistent with the federal; therefore, it is acceptable.  
                                                                               
State-only provision:  Notification requirement - designation of Class A, B, and C operators 
No federal analog 280.245 related
33.1-24-08-45 intro., second paragraph, third, fourth and fifth sentences
                                       
                                       
                                      OK
                                       
                                                                               
Review Comment:  North Dakota has an additional state-only provision, not present in the federal program, requiring that facility owners and operators must notify the department and provide the name of each designated Class A and B operator for each UST facility, including any changes to the Class A or B operators. The additional requirement makes the state more stringent, which is acceptable.  The state may wish to be more stringent; however, the state's implementing statute indicates at NDCC 23.1-04-06 that the state may not make rules that are more stringent than the federal.  As a result, the state may wish to revise this requirement.  The state's provision in the fifth paragraph, requiring that documentation identifying designated Class C operators be maintained at each facility, is consistent with the federal requirement in the introductory paragraph of 280.245.
                                                                               
Requirements for operator training.
280.242 intro.
33.1-24-08-45 intro., second paragraph, first and second sentences
                                       X
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota has additional language in the first sentence indicating that Class A, B, or C operators may be separate individuals or individuals designated to more than one operator class.  This sentence adds clarity and is consistent with the federal; therefore, it is acceptable.  
                                                                               
Requirements for operator training  -  Class A operators
280.242(a) intro.
33.1-24-08-45.1 introductory paragraphs
                                       X
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  The state includes a first paragraph that principally restates the definition of the 280.12 Class A operator at this location.  This adds clarity to the state program and is acceptable.  The second paragraph is equivalent to the 280.242(a) intro.
                                                                               
Requirements for operator training  -  Class A operators
280.242(a)(1) and (a)(2)
33.1-24-08-45.1.a and .b
                                       X
                                       
                                       
                                       
                                                                               
Requirements for operator training  -  Class B operators
280.242(b) intro.
33.1-24-08-45.2 introductory paragraphs 
                                       X
                                     (MCL)
                                       
                                       
                                       
                                                                               
Review Comment:  The state includes a first paragraph that principally restates the definition of the 280.12 Class B operator at this location.  This adds clarity to the state program and is acceptable.  The second paragraph is equivalent to the 280.242(b) intro.
                                                                               
Requirements for operator training  -  Class B operators
280.242(b)(1) and (b)(2)
33.1-24-08-45.2.a and .b
                                       X
                                       
                                       
                                       
                                                                               
State-only provision:  performance and documentation of onsite operator inspection by Class B operator
No federal analog in 280.242(b)
33.1-24-08-45.2.c
                                      INC
                                       
                                       
                                       
                                                                               
Review Comment:  The state's provision requires the Class B operator to ensure the performance and documentation of onsite operator inspection in accordance with section 33.1-24-08-49.  The federal program has no such requirement and the North Dakota's section 33.1-24-08-49 is reserved.  The state should remove 33.1-24-08-45.2.c from its regulations.   
                                                                               
Requirements for operator training  -  Class C operators
280.242(c)
33.1-24-08-45.3 
                                       X
                                       
                                       
                                       
                                                                               
Requirements for operator training  -  Training Program
280.242(d)
33.1-24-08-45.4
                                       X
                                       
                                       
                                       
                                                                               
Requirements for operator training  -  Comparable examination
280.242(e)
33.1-24-08-45.5
                                       X
                                       
                                       
                                       
                                                                               
State-only provision:  Timing of operator training.
280.243 related
33.1-24-08-46 intro.
                                      OK
                                   (MCL/CON)
                                       
                                       
                                       
                                                                               
Review Comment:  The state includes a separate introductory paragraph that restates that operator training must evaluate operator knowledge in the areas described for each class of operator under the state's analogs to 280.242(a), (b) and (c).  This adds clarity to the state program and is internally consistent but does not affect the stringency of the operator training requirements and is acceptable.  
                                                                               
Timing of operator training. 
280.243(a)
33.1-24-08-46.1
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota uses the date of August 8, 2012 rather than the federal October 13, 2018, as the deadline for compliance with the operator training requirements.  This is the date North Dakota's training program was effective and is acceptable in lieu of the federal deadline date.   
                                                                               
Timing of operator training. 
280.243(b)
33.1-24-08-46.2 first sentence 
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota uses the date of August 8, 2012 rather than the federal October 12, 2018, as the deadline for compliance with the operator training requirements.  This is the date North Dakota's training program was effective and is acceptable in lieu of the federal deadline date.   
                                                                               
Timing of operator training. 
280.243(c)
33.1-24-08-46.2 second sentence
                                       X
                                       
                                       
                                       
                                                                               
State-only provision:  Timing of operator training.
280.243 related
33.1-24-08-46.3 and .4
                                      OK
                                   (MCL/CON)
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota stipulates that the training must be performed by the department or by a third-party trainer approved by the department, except that a class A or B operator may train a class C operator.  Further, the state provides for the acceptance of operator training certification from other states with equivalent training requirements.  These additional state provisions are acceptable because they are consistent with the federal and add clarity to the state's program.  The preamble of the federal regulations recognized the value of training and acceptability of various types and forms of training so long as the basic requirements outlined in §280.242 are met.
                                                                               
Retraining.
280.244
33.1-24-08-47
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There are multiple typographical errors in this section:
 In the third line of the introductory paragraph:  33.1-24-18-45 should be corrected to read 33.1-24-08-45;
 In the third line of subsection 1:  33.1-24-18-45 should be corrected to read 33.1-24-08-45; and
 At the end of subsection 2:  the duplicate period "." should be removed.
                                                                               
Documentation.
280.245
33.1-24-08-48
                                       X
                                     (TYP)
                                       
                                       
                                       
                                                                               
Review Comment:  There is a typographical error in this section:  in the third line of the introductory paragraph:   33.1-24-18-24 should be corrected to read 33.1-24-08-24.
                                                                               
Subpart K  -  UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems
                                                                               
Definitions.
280.250 intro.
33.1-24-08-70 intro.
                                       X
                                   (INC/REF)
                                       
                                       
                                       
                                                                               
Review Comment:  There is an inconsistent internal reference in this paragraph.  The federal provision refers to "this subpart" and North Dakota uses "this section".  For consistency, North Dakota should revise "this section" to read "sections 33.1-24-08-70 through 33.1-24-08-72" in referring to their state analogs to federal 280, Subpart K.
                                                                               
Definitions  -  airport hydrant fuel distribution system
280.250 airport hydrant fuel distribution system
33.1-24-08-70.1 "airport hydrant fuel distribution system"
                                       X
                                       
                                       
                                       
                                                                               
Definitions  -  field-constructed tank
280.250 field-constructed tank
33.1-24-08-70.2 "field-constructed tank"
                                       X
                                       
                                       
                                       
                                                                               
General requirements.
280.251
33.1-24-08-71
                                       X
                                       
                                       
                                       
                                                                               
Additions, exceptions, and alternatives for UST systems with field-constructed tanks and airport hydrant systems.
280.252
33.1-24-08-72
                                       X
                                       
                                       
                                       
                                                                               
                             Part 280, Appendices
                                                                               
Notification for Underground Storage Tanks (Form)
Appendix I
Appendix I
                                       X
                                       
                                       
                                       
                                                                               
Notification of Ownership for Underground Storage Tanks (Form)
Appendix II
Appendix I
                                       X
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota includes a single appendix that addresses both the federal Appendices I and II, including a link to the state form "Notification for Underground Storage Tanks SFN 10980" at https://deq.nd.gov/Forms/WM/NotificationForUndergroundStorageTanks.pdf.
                                                                               
Statement for Shipping Tickets and Invoices
Appendix III
Appendix II
                                       
                                       
                                       
                                       
                                                                               
       PART 281  -  APPROVAL OF STATE UNDERGROUND STORAGE TANKS PROGRAMS
                                                                               
               Subpart D  -  Adequate Enforcement of Compliance
                                                                               
Delivery Prohibition
281.41(a)(4) related
33.1-24-08-36  -  33.1-24-08-39
                                      OK
                                       
                                       
                                       
                                                                               
Review Comment:  The federal program has chosen not to add a delivery prohibition to 40 CFR part 280 but requires states, under the EPAct and EPA's grant guidelines, to have the authority to incorporate these prohibitions as part of the enforcement options for their implementing agency.  The state only provisions for delivery prohibition from 33.1-24-08-36 through 33.1-24-08-39 are acceptable to be approved as part of North Dakota's enforcement and procedural provisions.
                                                                               
                             STATE ONLY PROVISIONS
                                                                               
State only  -  Unattended cardtrol facilities
No federal analog
33.1-24-08-44
                                      OK
                                       
                                       
                                       
                                                                               
Review Comment:  North Dakota requires this type of facility (defined as a facility "where control of the dispensing of a regulated substance is through a mechanical or electronic method without the constant onsite presence of a class A, class B, or class C operator.") have a sign posted in a conspicuous place that provides relevant information in the event of a spill or release.  While these types of facilities are not regulated in the federal program, the EPA recognizes that these types of facilities exist and refers to them as "unattended UST facilities" (see discussion under "Who Must Be Trained" at 80 FR 41572, first column).  The state-only requirement adds clarity to the state program but does not affect stringency and is acceptable.  
                                                                               



                                       
                                       
                                       
                                       
                                                                               


